Transgender Law and Stereotypical (Non)Conformity: From Biological Determinism to Gender Autonomy

Abstract

This essay tracks the evolution of legal and social accommodation of individuals’ transition between male and female genders, and conservative resistance, including discrimination and violence against transgendered (“trans”) people. Often misdescribed as a sex change, transition of gender identity is increasingly facilitated through human-rights laws. These allow, for instance, re-issue of state-provided identity documents like birth certificates and passports that confirm individuals in their chosen gender, in contrast to their biological sex identified, often superficially, at birth or prenatal ultrasound examination. Conservative resistance to transition, based for instance on religious convictions that we are fashioned irreversibly by divine providence, confines individuals to their sex assigned at birth, without regard to realities of how they appear and function in their families and communities.

The urge to change gender identity from male to female or vice versa has lost its historical medical characterization as a mental disorder or pathology, and now appears non-judgmentally as gender incongruence or dysphoria. The WHO International Classification of Diseases (2019) places the urge for gender transition among “Conditions Related to Sexual Health”. The UK Gender Recognition Act 2004 responded to the European Court of Human Rights’ condemnation, in Goodwin v. United Kingdom (2002), of previous jurisprudence confining individuals to their sex at birth, foreclosing gender transition. A limitation of the 2004 Act was exposed in 2020, however, when a trans man, self-publicized as Freddy McConnell, retained his ovaries and uterus and was artificially inseminated, but could legally be registered only as his born child’s mother.

Challenges to gender autonomy arise through sex-at-birth public and school washroom access laws, and for instance, regulations addressing transgendered athletes. For instance, trans women competing against cisgendered (i.e. non-trans) women in contact or endurance sports might be perceived at unfair advantage. Rules might accommodate them, for instance in Olympic competition, but issues remain unaddressed or unresolved at many domestic levels.

The 2002 European Court ruling was anticipated in the Islamic world. In Iran, a 1987 religious ruling (a fatwa) of Ayatollah Khomeini, developing his earlier analysis while in exile before the 1979 Iranian revolution, accommodated gender reassignment surgery, and remains influential. Islamic jurisprudence is not monolithic, and public including police oppression,as elsewhere, exists regarding perceived gender ambiguity and sexual deviancy. However, some countries in the Islamic tradition, including Egypt, Indonesia and Pakistan, have enacted liberal legislation based on human rights principles, such as Pakistan’s Transgender Persons (Protection of Rights) Act, 2018.

Keywords: transgender, human rights, gender identity, discrimination, biological sex, sex change, gender incongruence, gender dysphoria, sexual health, gender reassignment surgery, islamic jurisprudence,

JEL Classification: I18, K10, J18, J13, I10, J16